Android phonemakers have essentially four possible routes to try to avoid a "doomsday" scenario

Thus far Apple, Inc. (AAPL) has seen its patents narrowed or invalidated in U.S. court. At best it's cobbled together a handful of UI patents like gallery page flipping, kinetic scrolling, swipe-to-unlock, and a bounce back animation. Together, these patents could make Android a bit less pleasant, but it would be far from “game over” as Google Inc. (GOOG) would be free to continue sales and continue to attack Apple with retaliatory litigation in hopes of reaching a licensing truce, while pursuing workarounds.

The patent claims invention not of a particular narrow, precisely defined algorithm, but rather on an abstract description of all algorithms relating to the use of multi-touch displays. Basically, the patent covers how when your fingers are moving in semi-linear directions, the idea of removing the wobble in order to get a usable gesture.

Virtually every Android device sold today uses multi-touch. Without a method of allowing for accurate touch these devices would be rendered useless. And that's precisely what Apple is hoping for.

After scoring an early victory in January on the patent, Apple scored another win in a more in-depth judicial analysis of the claims in Apple's patent, and Google subsidiary/Android phonemaker Motorola Mobility's (the named defendant) complaints about the patent.

Responding to Motorola Mobility's insistence that the patent should only be valid for the 27 degree contact angle (error tolerance) discussed in the example implementation, he chastised, "I reject Motorola's argument (this is the third time they've made it and the third time I reject it) that the structure must be limited to the 27-degree angle used as an example by the specification."

The decision clears the way for a potential ban on all Motorola Android smartphone sales on infringement grounds.

II. Ubiquitous Patent Won't Expire Until 2028

Apple's attorneys cheer the news, writing, "[H]aving identified the problems associated with imprecise finger gestures, solved them, and successfully incorporated them into a commercial product, Apple should be entitled to the fruits of its innovation via broad patent protection, and the public is benefited by the disclosure of Apple’s invention."

The patent will last through 2028, so by "public is benefited" Apple means that it hopes that the public will be "benefited" by a complete ban on Android for over a decade and a half.

Apple's lawyers hope to "benefit" the public with an Android ban until 2028.
[Image Source: Carlos Rull]

Such an event would seem astounding, but is not impossible considering the following:

Without multi-touch you might as well not sell a handset in the current market.

Without gesture detection heuristic multi-touch would be impossible to implement effectively

The validation of Apple's claims language clears the way for a preliminary injunction on all Motorola multi-touch handsets. Bans on Samsung Electronics Comp., Ltd. (KS:005930) and HTC Corp. (TPE:2498) would likely soon follow.

Apple has not indicated it is willing to license this patent.

This latest is outcome is largely a byproduct of a U.S. Patent and Trademark Office that allows overly ambiguous nebulous software descriptions to be patented and then a judicial system which, in turn, allows them to be enforced with destructive, anti-competitive consequences.

But this incident is the most eye-popping example yet of the dangers of the current American intellectual property system as it has a strong possibility of radically transforming a vast market whose devices U.S. consumers use every day.

III. How Did We Get Here?

The wily Cupertino giant, the world's most profitable electronics company began its bid in early 2005. At the time Apple was enjoying a renaissance with its best-selling iPod, but it was curious if customers would buy a reimagined Apple Newton in a new ultra-slim form factor. In order to differentiate its product, Apple bought FingerWorks, a research and development company specializing in multi-touch gestures.

At that point Apple began patenting multi-touch implementation details at a frantic pace. The only remaining question was what kind of hardware to pair the algorithms with.

The answer came in 2006 when a handful of companies -- mostly Taiwanese display startups -- displayed capacitive multi-touch displays at the 2006 Consumer Electronics Show (CES) and other trade shows. Apple moved quickly to enter agreements to snatch up all the supply on the new displays.

This allowed it to enjoy a virtually untouched monopoly on multi-touch devices a year later, when its iPhone launched. While Apple's invention came largely second-hand via FingerWorks and the Taiwanese manufacturers, it appeared that Apple had "invented" multi-touch.

IV. Android Phonemakers Have Four Potential Routes to Avoid a Complete Ban

Now the clever strategy that ensured its risky smartphone project instant commercial acclaim and success could pay a second dividend in the form of an anti-competitive gift from the U.S. judicial system.

If Apple does score a complete sales ban, it has complete control over whether it opts to allow licensing at premium rates, or simply to allow Android U.S. sales to die. Either way Android phonemakers' only recourse would be to win a narrowing of the patent in similar Samsung/HTC cases, take the case to a higher federal appeals court in an effort to override Judge Posner's technical analysis, try to find enough prior art to convince the USPTO to invalidate the broad patent, or else win an equally damaging ruling against Apple, forcing licensing.

Is this game over for Android? Don't count Google and its allies out yet, they have several viable options to fight a complete sales ban. [Image Source: The Dark Furie]

If Google, et al. cannot find a way to accomplish one of those four reversal routes, Android is essentially soon to be dead in the U.S., barring some unforeseen circumstance. And if Android sales vanish in the U.S., the platform's global prospects are in jeopardy as well.

It sounds unbelievable, but Apple's ace could spell the virtual end of Android, currently the smartphone market's market share leader. Of course, on the flip side of the Android coalition has a lot of fight left in it and will likely look to exhaust each of the above options to avoid a radical market changing event in the U.S.

Coming now that Android has been on the market for a while I don't see it as ideal for consumers. However, if you cast your mind back to when the iPhone was first released in 2007, Steve said that they had "patented the heck out of the device" and truly the iPhone's uniqueness and main advantage was its revolutionary multi touch OS which eclipsed all which had come before it. For a while there was literally nothing which could touch it on the market for maybe 2-3 years. When Android and the rest started to snap at its heals was when they started operating (as well as looking in Samsung's case) like an iPhone. I personally don't see that they should be able to legally do that given that the iPhone was a heavily patented device.

You might argue that it was in the public interest, to open up the market to lower cost handsets etc. but seriously in what other field of business would a multi billion dollar company happily just surrender its IP and competitive advantage in the interests of the general public. In point of fact, Steve and now Tim have an obligation to their shareholders to safeguard their investment and research. The first iPhone was not just about whacking a multitouch screen on a palm pilot as some may choose to see it, it was revolutionary, and the major part of that was because of Apple's innovative software, a factor that no other company had previously nailed or even focused on. Whilst this decision is very late in coming, it is entirely reasonable IMO

I'm all for inventors being able to patent their technology and reap the rewards that come with that. I agree that Apple did create a new type of device that combined existing technology into a new package.

The issue I have here is that there is prior art in the case of many of Apple's patents. What Apple did is just frame them in the package of a portable device. Multi-touch was already patented for touch screen displays, but Apple's patent just adds that it's for a portable device. If I had the coin, like Apple does, I would file all kinds of patents that are based on existing patents but packaged in a different form factor. Many of Apple's patents like multi-touch, swipe to unlock, etc. are just rewording of existing patents for mobile devices and the US Patent Office just rubber stamps them through.